November 22, 2018

SETH BARRETT TILLMAN: Did The Chief Justice Rebuke President Trump?

Professor ZZZ asks: “Can anyone recall a rebuke of a President by a Chief Justice that’s anything remotely like this?”

Perhaps, Chief Justice Taney’s statement on the courthouse steps after deciding Ex parte Merryman from the bench? And didn’t Associate Justice Chase have some serious words, issued from the bench, about Jeffersonians—and by implication about Jefferson? The latter ended in tears, and arguably, so did the former.

Anyway, why should I care about the Chief Justice’s statements unrelated to actual litigation before the Supreme Court? Is the Chief Justice imbued with some religious or cult-like aura that makes such statements peculiarly insightful or relevant to the legal or political system?

If Professor ZZZ is right, if this statement was meant as a “rebuke,” then just maybe the Chief Justice should run for elected office—like Charles Evans Hughes, Sr chose to do. If the Chief Justice’s statement was meant as a “rebuke” in response to the lawful exercise of free speech (by the President), then just maybe we might want to (re)consider precisely who is breaking “our” norms—or, if we have common norms about which it is sensible to speak about. To be clear, I certainly don’t think it is the role of unelected judges to “rebuke” either citizens or elected officials for doing what it is perfectly legal to do.

Two thoughts. First, in talking about “Obama judges,” Trump was merely echoing the common media trope that identifies judges in controversial cases based on who appointed them. And if judges are as neutral and apolitical as Roberts pretends, then why so much sturm und drang over judicial appointments? To paraphrase Justice Field, if this is true, then the late excitement experienced by the country was quite unnecessary.

Second, Roberts is in a particularly poor place to talk about apolitical judging after his transparent capitulation to the Obama Administration’s campaign of media bullying during the pendency of the ObamaCare case. He reversed his position in response to political pressure from an administration that was, at the time, a party to the case. He has no high horse to sit on.

UPDATE: An amusing take from Harvard Lawprof Adrian Vermeule:




UPDATE: Chuck Grassley to Chief Justice John Roberts: You Rebuked Trump — but Sat Silent Through Obama’s Abuse. The increased feistiness of people like Grassley and Orrin Hatch post-Kavanaugh has been an amazing thing to behold.

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